Burden v. Stephens
| Decision Date | 17 September 1935 |
| Docket Number | Case Number: 23732 |
| Citation | 1935 OK 787,174 Okla. 312,49 P.2d 1098 |
| Parties | BURDEN et al. v. STEPHENS. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR--APPEARANCE--Waiver of Question of jurisdiction by Failure to Except to Ruling and by Pleading Invoking Powers of Court on Nonjurisdictional Grounds.
Where the jurisdiction of a district court is attacked by a special appearance and motion to quash summons and service thereof because a defendant is sued in a county other than that of his residence or in which he is served with summons, and the motion is overruled by the trial court and no exception is reserved by the defendant and he thereafter pleads generally in said cause and invokes the powers of the court on other than jurisdictional grounds, no question of jurisdiction is presented to this court.
2. APPEAL AND ERROR--HARMLESS ERROR--Service of Juror Lacking One of General Statutory Qualifications Which Was Unknown Before Verdict.
The mere fact that a juror lacked one of the general statutory qualifications to serve as a petit juror, which was unknown till after verdict, does not require that the verdict be set aside, when such disqualification is not inherent or necessarily of a prejudicial nature, and it is not shown that the rights of the complaining party were probably prejudiced.
3. APPEAL AND ERROR--REVIEW--Sufficiency of Conflicting Evidence to Support Verdict.
Where there is any competent evidence reasonably tending to sustain a verdict, in a law action, though the evidence be conflicting, and the cause is submitted to the jury upon instructions fairly stating the applicable law, this court will not review the evidence for the purpose of determining the weight thereof, and substitute this court's judgment for the judgment rendered on the verdict, and the verdict will not be disturbed on appeal.
4. APPEAL AND ERROR--REVIEW--Failure to Present Error in instruction by Motion for New Trial.
Where error is predicated upon an instruction to the jury which was not presented to the trial court by the motion for new trial, such error cannot be considered by this court.
5. APPEAL AND ERROR--Cause not Reversed Because of Inaccurate Charge on Measure of Damages Where Proper Instruction not Requested.
Where there is competent evidence tending to show the damages alleged and the verdict is not excessive, and when the complaining party does not request the trial court to give an instruction correctly stating the measure of damages, a cause will not be reversed because the court's charge does not accurately define the measure of damages.
6. APPEAL AND ERROR--REVIEW--Failure to Comply With Rule of Court as to Brief Where Erroneous Instructions Complained of.
Where appellant complains of erroneous instructions given by the trial court, but makes no effort to comply with Rule No. 10 of this court, requiring that where a party complains of an instruction given or refused he shall set out in his brief in totidem verbis the instruction or the portion thereof to which he objects, together with his objection thereto, the alleged errors complained of in such instructions are not presented to this court for review.
Appeal from Superior Court Pottawatomie County; Leroy G. Cooper, Judge.
Action by William J. T. Stephens against W. A. Burden and George Grimes. Judgment for plaintiff, and defendants appeal. Affirmed.
W. L. Chapman and John F. Pendleton, for plaintiffs in error.
Park Wyatt and Byron Lamun, for defendant in error.
¶1 The facts in this case in brief are as follows: William J. T. Stephens brought suit to recover from the defendants, W. A. Burden and George Grimes, actual damages in the sum of $ 10,000, and exemplary damages in the sum of $ 15,000, for personal injuries allegedly sustained by the said Stephens in an assault and battery committed on him by the defendants on or about the 29th day of April, 1930.
¶2 It is alleged, and seems to be admitted by all parties, that the plaintiff was at the time of said alleged assault crippled, and was obliged to use crutches in walking and getting about, and the plaintiff contends that the defendants, knowing of this crippled condition, nevertheless wantonly, willfully, maliciously, and without cause or provocation, assaulted him, knocking him down into a ditch and beating and battering him to such extent that he sustained serious and permanent injuries, from which he had not hitherto suffered, and to such extent that the injuries from which he had suffered prior to such assault were greatly aggravated and made worse; and that as a result he was further permanently incapacitated and suffered, and still suffers, great pain and anguish.
¶3 The defendants deny generally the allegations of plaintiff's petition, and further contend in effect that the plaintiff was the aggressor, and that the defendants were forced to defend themselves from the plaintiff, and in so doing used only such force as was necessary to protect themselves; and further contend that they did not injure the plaintiff nor cause the injuries from which he complains, but that said injuries were the result of his previous physical condition.
¶4 The jury found generally in favor of plaintiff and against the defendants, and rendered a verdict against the defendants for the sum of $ 2,500 actual damages and $ 1,000 exemplary damages, and judgment was entered by the trial court accordingly.
¶5 The first question urged in the brief of plaintiffs in error is that the superior court of Pottawatomie county had no jurisdiction over the person of the defendant Burden, for the reason that he was a resident of Nowata county, Okla., while the defendant Grimes was a resident of Pottawatomie county; that summons was served on the defendant Grimes in Pottawatomie county, and that a summons was issued out of the superior court of that county, directed to the sheriff of Nowata county, and served on the defendant Burden in that county; that there was no sufficient evidence to sustain a verdict against the defendant Grimes, and that therefore the superior court of Pottawatomie county had no jurisdiction over the defendant Burden.
¶6 No authorities whatever are cited in support of this contention, and this alone would probably justify this court in ignoring this contention; but wholly aside from whether or not the evidence would sustain a verdict against the defendant Grimes, an examination of the case made discloses that the said defendant Burden field a motion to quash the summons and service thereof as to him, and that the trial court overruled said motion, but the defendant reserved no exceptions whatever to the order of the court in overruling said motion, and thereafter entered a general appearance in said court and invoked its powers on other than jurisdictional grounds; so, even if there had been any merit to the contention aforesaid, this would have constituted a waiver of such defense.
¶7 This court has repeatedly held that errors alleged to have occurred in the lower court, unless the same are excepted to, will not be considered on appeal to this court. New v. Elliott, 88 Okla. 126. 211 P. 1025; Bounds v. Gooch, 92 Okla. 260, 219 P. 105; Byers v. Burton, 93 Okla. 211, 220 P. 476; Price v. Preston, 103 Okla. 47, 229 P. 437; Todd v. Webb, 134 Okla. 107, 272 P. 380.
¶8 This court has also held in numerous cases that where, after filing a motion to quash service, a defendant, without waiting for a ruling thereon, pleads generally in said cause, he enters a general appearance and is bound by the judgment. Brewer v. Oil Well Supply Co., 126 Okla. 108, 258 P. 866; Locke v. First National Bank, 121 Okla. 38, 248 P. 869. And the same rule applies where the motion to quash is overruled and no exception is saved, and defendant thereafter pleads to the merits of the case.
¶9 It is next contended by the plaintiffs in error that this cause should be reversed because one of the jurors who rendered the verdict in this case had not been a resident of Pottawatomie county for six months next preceding the...
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